The Affordable Care Act (ACA) never has a boring day in court, and today is no exception. Rulings were just made in two related ACA cases, and they couldn’t be more different. First, in a case called Halbig v. Burwell, the D.C. Circuit Court of Appeals ruled that people who get their insurance from the federal government exchange are not eligible for tax subsidies. More specifically, the 2-1 decision in Halbig says that subsidies are only permissible for those customers who enroll in health care exchanges run by individual states or the District of Columbia. Meanwhile, the Fourth Circuit Court of Appeals heard King v. Burwell on the same topic, this time ruling against the plaintiffs to hold the law as it stands. According to the Richmond, Virginia based Fourth Circuit Court, the federal government subsidies can stay. These rulings directly contradict each other, meaning that once again, the ACA’s status is uncertain.

As many states have opted to rely on the federal government’s exchange rather than establish their own programs, millions of Americans would lose tax credits for their health coverage if the D.C. Circuit Court’s decision stands. The ACA would lose much of its effectiveness in the 36 states that rely at least partially on the federal exchange. Before the Halbig decision was made, the Urban Institute reported that such a ruling, “would broadly undermine implementation of the ACA in [those] states, with substantial coverage and financial implications for their residents.” The report goes on to predict what monetary losses would be in 2016 for lower-income Americans who would have otherwise relied on those federal subsidies. Of the 11.8 million people projected to enroll in the federal government exchange, 7.3 million would likely receive tax subsidies. If the Halbig decision holds, those lower-income health care customers would lose $36.1 billion in 2016 alone, according to the Urban Institute report.

The Obama administration has now requested an en banc review of the case, in which all judges on the D.C. Circuit Court of Appeals would review the case. The fate of insurance subsidies in the states that rely on the federal exchange now rests in the hands of the 11 active judges on the D.C. Circuit Court.

In the Halbig case, the issue is the wording of the ACA. The law, as written, says that lower-income citizens are eligible for the subsidy if they receive insurance from “an Exchange established by the State under section 1311.” Because there is no mention of the federal government in the tax credit regulations, the D.C. Circuit Court’s interpretation limited subsidies to state exchange programs. Healthcare reporter Joe Carlson writes that such precise wording, “is widely seen as a drafting error.”

This discrepancy between the wording of the bill and the intention of the bill is what caused this debate. Jonathon Cohn of the The New Republic argues that at no point did lawmakers conceive that these tax credits should be limited to state exchanges. He wrote:

Not once in the 16 months I reported on the formal congressional debate did any of the law’s architects suggest they were thinking along these lines. It wouldn’t make sense in the context of the law, which depends upon those subsidies to accomplish its primary goal.

This was the same rationale behind the Fourth Circuit Court’s King decision. That ruling acknowledges the ACA’s linguistic ambiguity, and defers interpretation to the IRS, which did allow tax subsidies for people in the federal exchange. Further, the Fourth Circuit Court decision even included an analogy between Pizza Hut and Domino’s–comparing the similarities between the pizza chains to health coverage from a state and health care from the federal government. All argument aside, we all have to recognize that analogy is quite creative and apt–the two exchanges, like the pizza giants, are meant to provide the same service.

The conflicting arguments by the two appellate courts highlight the importance of the rift between semantics and intention. If the intention of a piece of legislation is so well understood that its literal wording is overlooked, are those who enforce that interpretation breaking the law? Or are they operating in accordance with the law? Furthermore, while the way that D.C. Circuit Court interpreted the law may seem overly strict, shouldn’t the legislature anticipate such questions and write laws exactly as they would like them to be enacted?

The cases are indicative of a philosophical disagreement between law as a means–the ACA was created to help insure those who can’t access health care–and the law as an end–the strict language of the ACA must be adhered to, regardless of why it was created. We aren’t just witnessing a dispute about tax credits; this may become a battle about the nature of law itself. The outcome has yet to be seen, but this proves that the battle over the ACA is far from over.

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Jake Ephros (@JakeEphros)

Featured image courtesy of [Joe Mabel via WikiMedia Commons, Progress Ohio via Flickr, modified by Jake Ephros]

Jake Ephros

Jake Ephros is a native of Montclair, New Jersey where he volunteered for political campaigns from a young age. He studies Political Science, Economics, and Philosophy at American University and looks forward to a career built around political activism, through journalism, organizing, or the government. Contact Jake at staff@LawStreetMedia.com.

The post Conflicting Courts: Affordable Care Act Up in the Air Again appeared first on Law Street.

Senior federal judges can make quite a pretty penny by working as teachers or lecturers at law schools, according to the financial statements that they are required to supply each year. The National Law Journal is featuring an excellent story, to be published next week but available online now, on just how much money is made by senior judges who lecture or teach at top law schools around the country.

The highest earning senior judge this year was Senior Judge Donald Ginsburg, a DC Circuit Court Judge, who took home $277,906 teaching for NYU Law. Another DC Circuit Judge, Senior Judge Harry Edwards, took in just south of $200,000, also from NYU Law. All in all, there were five federal judges who earned at least $100,000 from outside teaching and speaking engagements.

So, what is a senior judge?

A senior judge is a federal judge. In some states, state judges who are quasi-retired are considered senior judges. In order to be a senior judge, a judge must be at least 65, and have served at least 15 years on the bench. That requirement is sliding though, for each year older than 65, they need to have served one year less on the bench. For example, a 67-year-old judge could receive senior status after 13 years of presiding.

Depending on how many cases they choose to take on, senior judges might receive the same salary as an active federal judge. If they take on less, their salary is discounted slightly, but it will never fall below what it was the year they took senior status. So those five senior judges that made $100,000 (or more) are earning that on top of the regular salary they get from being senior judges. Given that a circuit judge now makes roughly $200,000 just for that position, senior judges like Ginsburg and Edwards are doing very, very, well for themselves.

The purpose of this program is that when judges elect to take senior status, they forfeit their seat. They become a kind of “at-large” judge who can float around and take on cases when needed. The vacated seat is filled so that there are more judges to take on heavy caseloads at the federal level. Senior judges can also work with and mentor younger active judges.

Active judges do have requirements about what they can do outside of their judgeship. They are not allowed to make more than $26,955 a year outside of their federal salary — although this does exclude certain ways of earning money, such as royalties from books already published. The purpose behind the rule is to keep active judges, who certainly could be in demand to teach or lecture, focused and prevent them from becoming overworked. However, there is no such requirement for senior judges. 

Senior judges are free to make as much as they desire in their free time, in addition to whatever portion of salary they receive from taking on a case load. Which leads to positions like Ginsburg and Edwards have at NYU Law.

Whether active or senior, that sounds like a decent amount of money to me, especially for a government employee. It is more than what our members of congress get–roughly $175,000 per year. But still, some judges say that it is still much too little. For example, Chief Justice John G. Roberts has made a number of statements saying that we need to pay our judges more. He claims that the salaries have not stayed consistent with the cost of living. In 2007, he actually called the supposedly stagnant pay for judges a “constitutional crisis” in his annual report.

To be fair, judges do make less than their law school classmates who landed partnerships at big law firms. But they still are among the highest paid government employees, they (clearly) can make quite a lot once they reach retirement age, and most importantly, they have lifetime job security. No law firm can boast that kind of awesome financial security.

So if you are thinking about a new dream job, being a senior judge may not be a bad one to add to your list. If you are anything like some of the judges teaching at law schools now, you will be pretty much set for life. Although if that is not quite enough money for you, there is another kind of judgeship to check out: in my research, I found out that Judge Judy makes about $47 million a year, making her the highest paid personality on TV. So either way, go on the judge route and you should be all set!

[National Law Journal]

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Martin Bowling via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Looking to Make Money? Become a Federal Judge appeared first on Law Street.